First Further evidence submitted by the
Rt Hon Lord Goldsmith QC, Attorney General
THE ROLE
OF ATTORNEY
GENERAL IN
OTHER JURISDICTIONS
1. This note summarises the role of Attorney
General or equivalent position in other jurisdictions. The note
is not a comprehensive survey. It focuses primarily on those jurisdictions
which have a legal system which is similar to that of England
and Wales. It is based on publicly available information. In the
time available, it has not been possible to have the note approved
by each office holder dealt with below.
2. The note is structured on an alphabetical
basis.
Australia
3. Establishment: The office of
Attorney General (currently held by Phillip Ruddock) was transplanted
to the Australian colonies with the reception of English law.
The Attorney General is assisted by the Solicitor General.
4. Appointment: The Attorney General
is appointed by the Governor-General on the advice of the Prime
Minister. The Attorney General is usually, but is not always,
a lawyer.
5. Link to Government: The Attorney
General is a Minister and a member of the Cabinet. In addition
to his role as a law officer, the Attorney General is the minister
responsible for legal affairs, national and public security
6. Role in relation to prosecutions:
The Attorney General authorises prosecutions for federal crimes.
In normal circumstances the prosecutorial powers of the Attorney
General are exercised by the Director of Public Prosecutions.
However the Attorney General maintains formal control, including
the power to initiate and terminate public prosecutions and take
over private prosecutions.
7. Prosecutions for certain offences require
the individual consent of the Attorney General. The Attorney General
also generally has the power to issue certificates which are conclusive
of certain facts (e.g. that the revelation of certain matters
in court proceedings might constitute a risk to national security).
The Attorney General also has the power to issue a nolle prosequi
with respect to a case, which authoritatively determines that
the state does not wish to prosecute the case, so preventing any
person from doing so.
8. Role in relation to criminal justice
policy: The Attorney General advices on reform of criminal
law and criminal investigation law, including potential amendments
to the Criminal Code Act 1995. The Attorney General also provides
policy advice on proposals for criminal offences and enforcement
powers in draft legislation being prepared within the Australian
Government.
9. Other functions:
(a) Legal advice: The Attorney acts
as a general legal advisor to the Cabinet. In practice, advice
is issued by the Solicitor General.
(b) Policy responsibilities: In addition
to the policy responsibilities outlined above, the Attorney General
has policy responsibility for, inter alia, human rights,
emergency management, marriage and intellectual property. The
Attorney General is the minister responsible for the Australian
Security Intelligence Organisation.
10. Website: http://www.ag.gov.au/
Canada
11. Establishment: The post of Attorney
General (currently held by Robert Nicholson) pre-dates Confederation.
Before Confederation, the post had been twinned with the post
of Minister of Justice. This arrangement continued after Confederation
and was formalised by the Department of Justice Act 1868.
12. Appointment: The Attorney General
is appointed by the Prime Minister.
13. Link to Government: The Minister
of Justice is, ex-officio, Attorney General. The Minister
of Justice is a cabinet post.
14. Role in relation to prosecutions:
The Attorney General is the head of the Federal Prosecution Service
(FPS) which is responsible for the conduct of prosecution of violations
of federal law in all the provinces, as well as the prosecution
of all federal offences, including Criminal Code violations, in
the territories. In exercising these functions, the Attorney General
must exclude any consideration based upon narrow, partisan views,
or the political consequences to the Attorney General or Cabinet
colleagues. The Attorney General will consult his Cabinet colleagues
in certain cases, in accordance with the Shawcross principle.
15. The Attorney General also provides legal
advice to investigative agencies on the criminal law implications
of investigations and prosecutions. It is a long standing practice
that the Attorney General not publicly discuss investigations
of which he is aware or disclose the findings and reports stemming
from such matters. The Attorney General may, however, privately
share knowledge of an investigation with appropriate authorities,
including members of the Government.
16. Role in relation to criminal justice
policy: The Minister of Justice has lead responsibility in
developing the criminal law, particularly in such areas as criminal
justice, evidence, and extradition.
17. Other functions:
(a) Legal advice: The Attorney General
provides legal advice to federal departments and agencies which
act on behalf of the Crown. Other departments do not have their
own lawyers; all advice is sought directly from the Attorney General.
The Attorney General also advises the Governor General.
(b) Litigation: the Attorney General
carries out all litigation for or against the Crown or any department
of the Government of Canada.
(c) Legislation: The Minister of Justice
must examine every Bill introduced in or presented to the House
of Commons by a minister of the Crown and every regulation submitted
to the Clerk of the Privy Council for registration to determine
if any of their provisions are inconsistent with the Canadian
Bill of Rights and the Charter of Rights and Freedoms. The Minister
must report any inconsistency to the House of Commons.
(d) Policy responsibilities: In addition
to his functions in relation to criminal justice policy (see above),
the Minister of Justice is also responsible for human rights,
family and youth law, administrative law, Aboriginal justice,
general public law and private international law.
18. Website: http://justice.gc.ca/en/index.html
Hong Kong
19. Establishment: The Attorney
General of Hong Kong (currently Wong Lan Yung) was renamed Secretary
for Justice after transfer of sovereignty in 1997. The Secretary
for Justice heads the Department of Justice.
20. Appointment: The Secretary for
Justice is appointed by the Central People's Government in Beijing
on the advice of the Chief Executive. The position is normally
held by a lawyer.
21. Link to Government: Before July
2002, the post was a civil service position. The Secretary for
Justice is now ex-officio member of the Executive Council.
22. Role in relation to prosecutions:
The decision to prosecute criminal offences is the sole responsibility
of the Secretary for Justice. In this capacity, the Secretary
for Justice operates independently, free from any political interference.
23. Role in relation to criminal justice
policy: No direct role.
24. Other functions:
(a) Legal advice: The Secretary for
Justice is the principal legal adviser to the Chief Executive,
to the government and to individual government departments and
agencies.
(b) Litigation: The Secretary for
Justice is the defendant in all civil actions brought against
the government.
(c) Public interest functions: The
Secretary for Justice may also apply for judicial review to enforce
public legal rights. The Secretary has a right to intervene in
any case involving a matter of great public interest. The Secretary
represents the public interest as counsel to tribunals of inquiry.
The Secretary is the Protector of Charities and must be joined
as a party in all actions to enforce charitable or public trusts.
He is also responsible for bringing alleged contempts of court
to the notice of the courts.
25. Website: http://www.doj.gov.hk/eng/new/index.htm
India
26. Establishment: The post of Attorney
General of India (currently held by Milon Banerjee) pre-dated
independence. It is now governed by the Constitution of India.
The Attorney General is assisted by the Solicitor General.
27. Appointment: The Attorney General
is appointed by the President. The appointee must be eligible
to become a judge in the Supreme Court of India.
28. Link to the Government: The
Attorney General does not have any executive authority. While
he is said not to be a political appointee, it is usual for the
Attorney General to change when there is a change in government.
29. Role in relation to prosecutions
and criminal justice policy: It is not clear that the Attorney
General has any role in relation to prosecutions or criminal justice
policy.
30. Other functions:
(a) Legal advice: The Attorney General
is the government's chief legal adviser.
(b) Litigation: The Attorney General
is the government's primary lawyer in the Supreme Court of India.
(c) Parliament: The Attorney General
has the right to participate in the proceedings of the Parliament,
though not to vote.
Ireland
31. Establishment: The post of Attorney
General (currently held by Rory Brady) predated independence but
is now enshrined in Article 30 of the Constitution.
32. Appointment: The Attorney General
is appointed by the President on the nomination of the Taoiseach.
33. Link to Government: Article
30 of the Constitution provides that the Attorney General shall
not be a member of the Government. He attends cabinet meetings
in his capacity as adviser to the Government on matters of law
and legal opinion.
34. Role in relation to prosecutions:
Article 30.3 of the Constitution provides that the prosecution
of offences (other than summary offences) is a function of the
Attorney General, or of some other person authorised in accordance
with law to do so. However, following the enactment of the Prosecution
of Offences Act 1974 responsibility for the great majority of
such prosecutions has been transferred to the Director of Public
Prosecutions. The DPP is wholly independent of Government. The
Attorney General retains certain prosecution functions, for example,
under the Fisheries (Amendment) Act 1978. The Attorney General
has a function in deciding whether warrants under the Extradition
Acts 1965 to 2001 should be endorsed or not and to advise in extradition
cases.
35. Role in relation to criminal justice
policy: No direct role.
36. Other functions:
(a) Provision of legal advice: The
Attorney General advises the Government on the constitutional
and legal issues which arise prior to or at Government meetings,
including whether proposed legislation complies with the provisions
of the Constitution, acts and treaties of the European Union or
other international treaties to which Ireland has acceded. The
Attorney General also advises as to whether the State can ratify
international treaties and conventions.
(b) Litigation: The Attorney General
is representative of the public in all legal proceedings for the
enforcement of law and the assertion or protection of public rights.
He represents the State in all legal proceedings involving the
State. The Attorney General defends the constitutionality of Bills
referred to the Supreme Court under Article 26 of the Constitution.
In addition, under the Attorney General's Scheme the Attorney
General funds certain legal proceedings which are not covered
by legal aid. The Attorney General may also institute relator
actions in the public interest.
(c) Legislation: The Office of the
Parliamentary Counsel is a constituent part of the Attorney General's
Office. The Attorney General also has functions in relation to
the Law Reform Commission under the Law Reform Commission Act
1975, in respect of legislative programming as a member of the
Legislation Committee which is chaired by the Government Chief
Whip.
37. Website: http://www.attorneygeneral.ie/index—en.html
Israel
38. Establishment: The post of Attorney
General (currently held by Menachem Mazuz) has not been the subject
of a Basic Law or major legislation. However, the traditional
rules and customs associated with the post were set out by a committee
convened in 1962 and chaired by Shimon Agranat, then a Supreme
Court Justice.
39. Appointment: The Attorney General
is appointed by the Government on the recommendation of the Minister
for Justice.
40. Link to Government: The Attorney
General is not a Minister. It is a civil service post. Since the
Agranat Committee reported in the 1960s, there has been an understanding
that a person who possesses a strong political identity or who
is known for his political activism should not be appointed to
the post. The person appointed Attorney General should be free
of political party influences so that his decisions may be arrived
at independently and without concessions to instructions or policy
of the Government or the Minister of Justice.
41. Role in relation to prosecutions:
The Attorney General is authorized to decide whether or not to
submit an indictment. He may also rule with respect to the decision
of the police or the State Attorney to investigate or close a
file. His other functions include the power to request that the
extension of an arrested person's detention by a court for a time
period longer than 30 days; to request that the immunity of a
particular Member of Knesset be waived; and to stay criminal proceedings
after an indictment has been submitted.
42. Role in relation to criminal justice
policy: No direct role.
43. Other functions:
(a) Legal advice: The Attorney General
is the government's chief legal advisor. He provides counsel directly
or indirectly through the government legal service. The Attorney
General is also responsible for issuing guidelines to the Government
on the interpretation of law and appropriate legal procedures.
The Attorney General may attend government meetings in his capacity
as legal adviser.
(b) Litigation: The Attorney General
represents the State in all civil and criminal legal proceedings.
In practice, much of this responsibility is delegated to the State
Attorney. If legal actions are taken against the State, the Attorney
General may choose to defend, or not to defend, the State and
its public bodies in court. The Government may not hire a private
attorney without the consent of the Attorney General's office,
regardless of whether or not the Attorney General and his staff
are prepared to represent the Government in a particular case.
(c) Legislation: The Attorney General
advises the Division of Legislation in the Ministry of Justice
in the preparation of bills to be presented by the Government
and in supervising the promulgation of regulations by all government
ministries.
(d) Public interest functions: The
Attorney General is authorized to provide representation and to
argue in any legal procedure which, in his view, involves an issue
of public interest.
Malaysia
44. Establishment: The post of Attorney
General (known as Peguam Negara, currently Tan Sri Abdul Gani
Patail) is enshrined in Article 145 of the Federal Constitution.
The Attorney General is assisted by the Solicitor General.
45. Appointment: Under the Constitution,
the monarch appoints the Attorney General on the advice on the
Prime Minister. The appointee must be qualified to be a judge
of the Federal Court.
46. Link to Government: Under the
Constitution, the Attorney General may be, but need not be, a
member of Cabinet. The current postholder formerly worked in the
Attorney General's Chambers and has not previously held any Ministerial
office.
47. Role in relation to prosecutions:
Under the Constitution, the Attorney General has the power to
institute, conduct or discontinue any proceedings for an offence,
other than proceedings before a Syariah court, a native court
or a court-martial.
48. Role in relation to criminal justice
policy: No direct role.
49. Other functions:
(a) Legal advice: Under the Constitution,
it is the duty of the Attorney General to advise the monarch or
the Cabinet or any Minister upon legal matters.
(b) Legislation: The Attorney General
is responsible for the drafting of all federal legislation.
(c) Litigation: The Attorney General
represents the government in civil cases. He has rights of audience
any court or tribunal in the Federation.
50. Website: http://www.agc.gov.my/agc/index.html
New Zealand
51. Establishment: The post of Attorney
General (currently held by Michael Cullen) existed before independence.
The existence of the office is recognised by the Constitution
Act 1986. The Attorney General is supported by the Solicitor General.
The Solicitor General is a non-partisan official who is not a
member of the Government.
52. Appointment: The Attorney General
is appointed by the Governor-General on the recommendation of
the Prime Minister. While traditionally the post has always been
held by a lawyer, recent appointees have not been legally qualified.
53. Link to Government: Historically,
the post of Attorney General could be held either by a politician
or by a senior jurist. However today, it is invariably held by
a member of Parliament. The Attorney General is a Minister of
the Crown. It is common for the Attorney General to have other
policy portfolio responsibilities. The Attorney General is usually
a member of Cabinet. At times, the Attorney General has also been
the Minister of Justice.
54. In exercising his functions as Attorney
General, the Attorney General is expected to disregard any political
interest or partisan advantage to the Government.
55. Role in relation to prosecutions:
The Attorney General heads the justice system and supervises criminal
prosecutions. He has statutory powers to decide whether to stay
prosecutions, give a witness or other person immunity from prosecution
and to deal with requests for extradition and mutual criminal
assistance. There are a number of offences for which the consent
of the Attorney General is required to bring a prosecution. The
Solicitor General (not the Attorney General) has the right to
appeal against inadequate sentences.
56. The Attorney General has departmental
responsibility for the Serious Fraud Office.
57. By tradition, successive Attorney Generals
have preferred not to become directly involved in the areas of
prosecution or Law Officer decisions by the Solicitor General
(who as noted above is an official as opposed to a politician)
in relation to criminal proceedings. The reason for this convention
is said to be to prevent the administration of criminal law becoming,
or appearing to become, a matter of political decision-making.
The Solicitor General remains accountable to the Attorney General
for the overall supervision of criminal prosecutions.
58. Role in relation to criminal justice
policy: No direct role as Attorney General though particular
Attorney Generals may have wider policy responsibilities.
59. Other functions:
(a) Legal advice: The Attorney General
is the principal legal adviser to the Government. In practice,
it is the Solicitor General who gives legal advice, subject to
the opinion of the Attorney General.
(b) Litigation: The Attorney General
has overall responsibility for the conduct of all legal proceedings
involving the Crown. He is the principal plaintiff or defendant
on behalf of the Government in the courts. Most litigation involving
Ministers or departments is handled by the Crown Law Office, for
which the Attorney General is responsible. The Solicitor General
or Crown Counsel act as counsel in such proceedings. The Attorney
General has occasionally appeared personally on behalf of the
Government.
(c) Public interest functions: In
addition, the Attorney General may instigate, or intervene in
proceedings, which affect the public interest He may also instigate
relator actions to assert public rights. He is the Protector of
Charities.
(d) Legislation: The Attorney General
has Ministerial responsibility for the Parliamentary Counsel Office
who draft all government Bills. Under the Bill of Rights Act 1990,
the Attorney General must report to the House of Representatives
any provision in a Bill which he considers is inconsistent with
the Bill of Rights.
(e) Judiciary: The Attorney General
is responsible for the relationship between the executive and
the judiciary. The Attorney General appoints members of the senior
courts. He is also responsible for protecting the judiciary from
improper and unfair criticism. In that capacity, he will answer
attacks on their decisions. The Attorney General is also responsible
for bringing proceedings for contempt of court.
(f) Miscellaneous: The Attorney General
has a range of other functions including making recommendations
to the Governor-General on the appointment of Senior Counsel (formerly
Queen's Counsel); being a member of the Rules Committee (charged
with responsibility for developing rules of court).
60. Website: Website of the New
Zealand Government: http://www.beehive.govt.nz/. Crown Law Office
Briefing Paper for the Attorney General (August 2002) found at
http://www.beehive.govt.nz/briefings/justice/attorney—general/home.cfm
Scotland
61. Establishment: The post of Lord
Advocate (currently held by Elish Angiolini) dates back to the
fifteenth century. Post devolution, the Scotland Act 1998 makes
provision in relation to the appointment and status of the post.
The Lord Advocate is supported by the Solicitor General.
62. Appointment: Under the Scotland
Act 1998, Her Majesty appoints the Lord Advocate on the recommendation
of the First Minister. The First Minister must obtain the agreement
of the Scottish Parliament for his recommendation.
63. Link to Government: The Scotland
Act 1998 provides that the Lord Advocate is a member of the Scottish
Executive. Under the Scotland Act 1998, the Lord Advocate must
resign if the Parliament resolves that the Scottish Executive
no longer enjoys the confidence of the Parliament.
64. Role in relation to prosecutions:
The Lord Advocate is the chief public prosecutor for Scotland
and all prosecutions on indictment are nominally done in her name.
She is the Ministerial head of the Crown Office and Procurator
Fiscal Service. Local prosecutors—Procurators Fiscal—prosecute
on her authority. The Scotland Act 1998 specifically provides
that the decisions of the Lord Advocate, in her capacity as head
of the systems of criminal prosecution and investigation of deaths
in Scotland, must be taken by her independently of any other person.
65. Role in relation to criminal justice
policy: No direct role.
66. Other functions:
(a) Legal advice: The Lord Advocate
is the chief legal adviser to the Scottish Executive and the Crown
in Scotland for both civil and criminal matters that fall within
the devolved powers of the Scottish Parliament.
(b) Parliament: The Scotland Act 1998 provides
that even if the Lord Advocate is not a member of the Scottish
Parliament, she may participate in the proceedings of the Parliament
to the extent permitted by standing orders but may not vote. The
Lord Advocate must register her interests as if she were a member
of Parliament.
(c) Devolution settlement Under the
Scotland Act 1998, the Lord Advocate may initiate litigation in
connection with devolution issues.
(d) Legislation: The Lord Advocate
is a member of the Cabinet Sub-Committee on Legislation and involved
in the planning, management and delivery of the legislative programme.
(e) Litigation: The Lord Advocate
oversees the handling of litigation involving the Scottish Ministers.
On occasion, she may appear in person to represent the Scottish
Ministers. In addition, the Lords Advocate has a general "public
interest" role in litigation and may intervene in litigation
in the public interest.
(f) Investigation of deaths: The Lord
Advocate is also responsible for the system of investigation of
sudden or suspicious deaths in Scotland. Her functions in this
capacity are largely exercised by Procurators Fiscal, who may,
on her instructions or as required by statute, conduct public
inquiries into deaths in some cases. This role is analogous to
the functions of the coroner in England and Wales.
United States of America
67. Establishment: The Office of
the Attorney General (currently held by Alberto Gonzales) was
created by the Judiciary Act of 1789. The Attorney's remit was
"to prosecute and conduct all suits in the Supreme Court
in which the United States shall be concerned, and to give his
advice and opinion upon questions of law when required by the
President of the United States, or when requested by the heads
of any of the departments, touching any matters that may concern
their departments." Over the years, this has evolved into
the Department of Justice which was formally created by statute
in 1870. To assist the Attorney General, the 1870 Act created
the Office of the Solicitor General.
68. The Solicitor General also works within
the Department of Justice. He is appointed to argue for the Government
in front of the Supreme Court, when the government is party to
a case. He is nominated by the President and confirmed by the
Senate.
69. Appointment: The Attorney General
is appointed by the President. The appointment must be confirmed
by the Senate. The Attorney General must be "learned in law".
70. Link to Government: The Attorney
General is a member of the President's Cabinet.
71. Role in relation to prosecutions:
The Department of Justice develops, enforces, and supervises the
application of all federal criminal laws in the United States.
Department of Justice attorneys prosecute many nationally significant
cases and formulate and implement criminal enforcement policy.
In addition to its direct litigation responsibilities, the Department
of Justice formulates and implements criminal enforcement policy
and provides advice and assistance. For example, the Department
of Justice approves or monitors sensitive areas of law enforcement
such as participation in the Witness Security Program and the
use of electronic surveillance; provides legal advice and assistance
to federal prosecutors and investigative agencies; and provides
leadership for coordinating international as well as federal,
state, and local law enforcement matters.
72. Role in relation to criminal justice
policy: No direct role.
73. Other functions: The Attorney
General and the Department of Justice have a range of other functions
including:
(a) Legal advice: The Attorney General
represents the United States in legal matters generally and gives
advice and opinions to the President and to the heads of the executive
departments of the Government when so requested.
(b) Litigation: Under the 1870 legislation
which established the Department of Justice, the Department has
control over all criminal prosecutions and civil suits in which
the United States had an interest. In addition, the Act gave the
Attorney General and the Department control over federal law enforcement.
In matters of exceptional gravity or importance the Attorney General
appears in person before the Supreme Court though in most cases,
the Solicitor General represents the Government.
(c) Law enforcement/prisons: A number
of law enforcement agencies, including the FBI and DEA, are Department
of Justice agencies. Similarly, the Federal Bureau of Prisons
and the Marshall Service are part of the Department of Justice.
74. Website: http://www.usdoj.gov/ag/
February 2007
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